Monday, November 05, 2012

Ind. Decisions - Supreme Court decides one late this afternoon

This case presents a single question: does Appellate Rule 9, which tolls the thirty-day deadline for filing a notice of appeal when a party files a motion to correct error, apply to the State in a criminal case? We hold that it does. * * *

As this issue was not (and could not have been) raised in the trial court, and we have vacated the opinion of the Court of Appeals, App. R. 58(A), we address the issue de novo. * * *

In support of his argument that the State’s appeal is impermissible, Holtsclaw cites Indiana Code § 35-38-4-2, which states that in criminal cases the state may appeal only certain rulings, including “an order granting a motion to suppress evidence, if the ultimate effect of the order is to preclude further prosecution” or “an order granting a motion to correct errors.” Ind. Code § 35-38-4-2 (2008) (emphasis added). Holtsclaw argued that the State could not appeal under either of these provisions because it failed to appeal within thirty days of the order suppressing the evidence and had no statutory right to appeal the denial of its motion to correct error. In response, the State cited Appellate Rule 9, which provides that the thirty-day deadline to file a notice of appeal is tolled “if any party files a timely motion to correct error.” Ind. Appellate Rule 9(A)(1). The State contended that Appellate Rule 9 took precedence over Indiana Code § 35-38-4-2, and thus its appeal was timely. We agree. * * *

We remand this case to the Court of Appeals for consideration of the merits of the State’s appeal.

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

In the absence of any sort of controversy, appellate judges had been retained by comfortable margins in Indiana for four decades. Around this time two years ago, few people had any idea that five judges were up for a retention vote. A rare media story focused on the absence of any sort of campaign.

What a difference one election cycle can make. This year the retention election, especially regarding Justice David, has received a great deal of press, and the public, lawyers, and bar associations are engaging in a sometimes uncomfortable discussions about retention elections and judicial performance.

Retention standard and considerations

Until a few weeks ago, the standard or considerations for when to vote "yes" or "no" in retention elections were seldom discussed by citizens, lawyers, or bar associations.

A recent National Journalarticle co-authored by retired Chief Justice Shepard suggests that retention elections were adopted “to give citizens a way to consider removing a judge in the rare instance he or she is unfit for office, whether for ethical lapses, for exhibiting general incompetence, or lacking the temperament to hear and decide cases fairly and impartially.”

However, in Indiana a retention election is not necessary to remove an “unfit” judge from office; Article 7, Section 11 gives the Court the responsibility to discipline and remove judges at any point during their term of office.

The ad hoc standard applied in other states, which is understandingly troubling to many, has sometimes been a single decision, as this Iowa 2010 video ad makes clear. A 1986 effort in California was grounded in rulings against the death penalty. Hot button issues like same-sex marriage or the death penalty are far more likely to garner public attention and campaign contributions than an effort based on incompetence, which sadly would probably not be well-known outside the bar.

Lawyer commentary on retention

I expressed my support of Justice David and the other five judges on the ballot this year in an op-ed posted in the ISBA’s website and later printed in the Indianapolis Star. Some lawyers have since questioned not only whether Justice David should be retained but the propriety of an individual lawyer taking a stand at all.

A post on a criminal defense listserv asked “what in the world moved you to author such a pandering piece” (the Star op-ed) and questioned many of the specifics in the article. This was followed by a response from another lawyer that included:

I have an approach that doesn’t require much thought. Just as a matter of prophylaxis, vote "no" for everyone. . . . The folks to come will be quite independent, if they know they only have a two-year sabbatical from real life on an appellate court. . . .

Why would anyone vote "yes" for any of these people? Because some of them hold our licenses? (How about a constitutional amendment to change that?) No one could possibly support any of these people publicly because of the job their doing.

Vote "no"; and tell everyone you know to do the same.

Yet another lawyer agreed with the just-say-no post and added:

I don't think any judges need lawyers to be their cheerleaders to the public audience, let alone criminal defense lawyers or the collective “bar.”

Every citizen, including lawyers, should be free to express a view for or against retention. I don’t think anyone’s law license is in jeopardy, although the difficulty in taking a public stand against a judge before whom a lawyer will likely appear for many years to come is understandable.

Bar association efforts

Individual lawyers expressing their views is different from a bar association doing so. On Friday, the Indiana State Bar Association sent the following email to all members from President Dan Vinovich entitled, “Vote YES to retain our justices & judges”:

Our system of justice is under attack this election. As officers of the court we are obligated to protect the integrity of the judicial system. I encourage each of you to copy & paste the message below and send it to your email contact list, post it on your social media pages (Facebook, LinkedIn, Twitter, etc.) and communicate in any way you are able to educate your friends and family on this most important issue.

This election day please vote YES for all six judges up for retention. Each of the judges earned overwhelming approval in a recent survey by the Indiana State Bar Association. Over the course of a career, a judge may dispose of thousands of cases. One decision alone is not an accurate barometer of a judicial career. Judges are sworn to follow the law and not be swayed by special interest groups. Voting not to retain a judge because of one ruling politicizes the judiciary and threatens its independence as well as our form of government. Support the rule of law. Vote YES for all judges.

Part of this email restates information about the ISBA poll results and comments on the general role of a judge, which is certainly useful to consider in deciding how to vote and perhaps what to say to non-lawyers who seek our advice before the election. However, I’ve heard from some lawyers who found other parts of the email inappropriate, if not a bit offensive:

Specifically, although one agreed that the anti-David effort was misguided and based on one opinion, the lawyer didn’t think the ISBA should tell “us all to vote one way.”

Another pointed out the strong influence lawyers have in selecting judges, which is currently under attack in some states, and the possibility that this sort of effort could be fodder for changing the selection method of judges and justices in the General Assembly.

Others have asked more generally about the purpose of a retention election if everyone is expected to reflexively vote “yes” year after year to “protect the integrity of the judicial system” from “attack.”

Ideally bar associations strike an appropriate balance by providing useful information and commentary on judges without being seen as constant cheerleaders. Conducting and publicizing polls of lawyers familiar with a judge’s work is eminently reasonable and valuable, as is educating the public on the role and duties of judges. Going beyond those parameters, though, may not only rankle some members but could be used in future efforts to diminish the role of lawyers in selecting judges.

Indianapolis -Thousands of Hoosiers whose driver's licenses are currently suspended had their licenses reinstated today when the Indiana Bureau of Motor Vehicles agreed - in ongoing litigation by the American Civil Liberties Union of Indiana and private counsel Scott DeVries - to stop demanding proof of auto insurance from people who weren't required to have it.

The "Previously Uninsured Motorist Registry" unlawfully suspended the driver's licenses of people who had not violated any laws. The state legislature in 2010 established the registry, but the BMV did not issue rules to enforce it. Nevertheless, the BMV began that year to randomly select individuals for suspension of their driver's licenses.

In August, Marion County Judge Theodore Sosin granted a preliminary injunction to Lourrinne M. White, a working mother of six who faced financial disaster and ruin because her driver's license had been suspended. In 2010, the BMV sent White a notice that her driver's license would be suspended for a year because she did not carry auto insurance. Yet, White did not own a car and was not legally required to have insurance at the time of the BMV's punishment. The BMV's actions violated Indiana law and due process as guaranteed by the Fourteenth Amendment to the U.S. Constitution.

ACLU of Indiana Legal Director Ken Falk said the lawsuit is on file and is "stayed," meaning no more licenses can be suspended until the stay is lifted. "I am hopeful that the BMV will go back to the General Assembly in 2013 to change this law so that Hoosiers are not again subject to unlawful and unconstitutional suspensions of their driving privileges," said Falk. "We recommend that before driving people check their driving status with the Indiana Bureau of Motor Vehicles, which they can do by phone or online if they have computer access."

Ind. Decisions - Charlie White disciplinary proceedings stayed

Ind. Decisions - Transfer list for week ending Nov. 2, 2012

[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]

Darrell Lawrence v. State of Indiana - This is an Aug. 7, 2012 NFP opinion that concluded: "[W]e conclude that the evidence presented by the State to support his conviction for resisting law enforcement was improperly admitted as fruit of the poisonous tree. We dismiss the State’s Cross-appeal. We reverse in part, and dismiss in part, and remand."

In addition, as reported in this Oct. 31st ILB entry, the Court vacated transfer and reinstated the COA opinion in the case of Whiskey Barrel Planters Co., Inc. v. American GardenWorks, Inc.

Today the Criminal Law and Sentencing Policy Study Committee met and agreed upon a draft of a bill to revise the Indiana Sex Offender statute. A copy of that draft is not yet posted on the study committee's website.

A check of the website today shows no draft has been added. Neither the draft nor the revisions to it made during the Oct. 25th Committee meeting appear to be available.

In addition, the Committee met 5 times this fall, but only the minutes of the first meeting are available. On the good side, it appears that videocasts of all 5 meetings have been posted (although I haven't tried the links yet). The Committee has no final report.

Criminal Code Evaluation Commission

This Commission met a number of times this fall, its minutes and a review/report are available. Preliminary Draft 3425, discussed at the final meeting, is not online. Videocasts of four of its meetings, but not the final meeting, appear to be available.

The effort to overhaul major portions of Indiana’s criminal code to make punishment more proportionate to the crime moved another step forward Wednesday.

The state’s Criminal Code Evaluation Commission approved much of a 382-page draft of proposed legislation that contains sweeping changes to the code, including more levels of felonies, lower penalties for some drug and theft crimes and potentially more prison time for the worst sex and violent offenders.

The 16-member commission, which is made up lawmakers, judges, and representatives from the state’s prosecutors, public defenders, and state prisons, failed to reach agreement on some key areas. Among them: the sentencing ranges for the six new felony levels that the commission thinks should replace the current four felony levels.

The commission also pulled back some language that dealt with the credit time that offenders can earn toward early release while in prison, and also pulled some of the proposed changes on how habitual offenders are sentenced. Those issues will have to be left for legislators to hammer out in the next legislative session, which begins in January.

But the commission pushed forward on some other critical areas: recommending that Indiana do away with its punitive “drug-free” zones that ratchet up prison terms and reducing a low-level theft from a felony to a misdemeanor. * * *

The 2010 sentencing reform effort was dashed in part by opposition from the state’s prosecutors, who were critical of proposed legislation that would have shifted more low-level offenders out of the state prisons and into county jails and community-based programs without much more resources. In the draft of the proposed legislation approved by the commission Wednesday, there are provisions to provide more state dollars to local communities, including more money for community-based corrections and more money to counties for probation services. * * *

The only “nay” vote came from commission member David Powell, the executive director of the Indiana Prosecuting Attorneys Council. Powell said county prosecutors agreed with much of the recommended changes to the state’s criminal code.

But there were some sticking points: prosecutors opposed the penalty reductions for some of the drug and theft crimes. The commission’s recommendations are noteworthy, as several members noted, because they were reached through a lengthy process, bipartisan agreement, and significant consensus among people who hold varying views on criminal justice. But it’s also just the beginning: Now it has to be transformed into some massive legislation that both the state House and state Senate will approve and the next governor will sign.

That comes after 13 Investigates revealed concerns that thousands of violent criminals have been released too soon from prisons.

Indiana's Criminal Code is what determines how much time a convicted criminal will spend behind bars. It's been 35 years since that code has had a major overhaul it appears that is about to change.

Every year, thousands of convicted criminals are set free after serving just a fraction of their sentence. 13 Investigates showed inmates have been able to stack good time credits with education credits, vocational credits, rehabilitation credits, and other credits to slash years - even decades - off their sentences.

Many of the lawmakers, judges and attorneys that make up the state's criminal code evaluation commission say it's time to change that. This week, they finished a major review of the Criminal Code and the result is a proposed bill that's nearly 400 pages long.

Following our investigation, the commission is recommending cutting the amount of credit time inmates can earn. Program credits and education credits could be combined for up to two years off an inmate's sentence instead of the current four years.

Some members of the commission also want the Department of Correction to take a harder stand on good time credit. 13 Investigates showed how violent criminals who commit more offenses behind bars still get their good time credit anyway.

Those restrictions are not currently included in the proposed bill, but lawmakers say they will be once the bill is introduced to the full legislature.

"I believe the committee, and most people believe, if you misbehave and lost your good time credit, it should be lost," said Rep. Greg Steuerwald (R-Danville).

The Department of Correction does not agree with all the changes. The department says letting inmates out early saves a lot of money and requiring inmates to serve more of their sentences will cost taxpayers millions of dollars and could force the state to build more prisons.

Lawmakers will continue to meet with the DOC and with prosecutors and public defenders to craft the final bill that will be introduced in January.

Ind. Courts - Still more on "ACLU of Indiana Challenges Marion County Judicial Election System"

The ACLU of Indiana's lawsuit in opposition to Marion County's deeply flawed system for electing Superior Court judges is long overdue.

In a peculiar arrangement that only a party boss could love, Democrats and Republicans work together to divvy up the court's 20 judgeships ahead of the May primary. Democrats nominate 10 judges; Republicans nominate 10 as well. All of the nominees are then assured of winning the general election in November, barring the unlikelihood of a successful bid by a third-party candidate.

Defenders of the system, which is actually written into state law, argue that general election voters aren't informed enough to make intelligent choices about who should serve as judges in Marion County. The cynicism of that argument aside, it could be applied with equal accuracy to other low-profile offices such as county clerk, auditor, coroner and surveyor. Should party insiders take over from voters the responsibility of filling those posts as well?

Spare us also the arguments that voters get their say in the primary and that the law somehow filters partisanship from the selection process. Democratic and Republican insiders anoint their favorites ahead of the primary, and although it's possible for outsiders to challenge the favored candidates, it's a high obstacle to overcome. So, again, in all reality, it's the local party chairmen and their allies who fill the posts in Marion County's Superior Court.

So what's the solution? If voters truly can't be relied upon to make good choices on their own, then the General Assembly should change the law to set up an appointment model in which an independent panel nominates qualified candidates. The governor would then appoint the judges, which is how appellate and Indiana Supreme Court vacancies are filled.

As the system stands, the ACLU's lawsuit, brought on behalf of Common Cause Indiana, has strong merit. It's too late, of course, to fix the process for this week's elections, but it requires a drastic overhaul before another Election Day arrives.

Ind. Courts - New juvenile court magistrate in Lake County

CROWN POINT | The loss to the Lake County CASA program was the judiciary's win, Lake Juvenile Court Judge Mary Beth Bonventura says.

The commitment and experience of the program's longtime director, Elizabeth Gail Tegarden, made her the judge's "only" consideration when it came to replacing another juvenile court veteran, John Sedia.

Tegarden did not seek the position. Rather, Bonaventura sought her.

"We deal with underdogs in this court, children with no real voice," Bonaventura said. "Often Gail is the voice for these children. How can I not want her to sit in judgment and help people navigate through this maze we call the criminal justice system? We all turn to her."

Tegarden, 58, of Gary, says she has been in and out of juvenile court since obtaining her law degree 31 years ago, first by representing indigent clients in cases involving Children in Need of Services.

A graduate of Boston University and Valparaiso University School of Law, Tegarden also served as a public defender in juvenile court before accepting the CASA directorship in 1998.

Ind. Gov't. - "On Thursday morning, legislators tasked with recommending solutions to issues plaguing Indiana's Department of Child Services will and begin their work of balancing politics with policy."

On Thursday morning, legislators tasked with recommending solutions to issues plaguing Indiana's Department of Child Services will sit down in a government conference room and begin their work of balancing politics with policy.

Perhaps some of them won't recognize the irony of what's slated to happen in a small courtroom in South Bend on the same day: Dellia Castile will be sentenced to up to 50 years in prison for not protecting her grandson, 10-year-old Tramelle Sturgis, from his father, who beat and tortured the boy to death a year ago.

The General Assembly's study committee on DCS has taken testimony since August from DCS officials and members of the public, but Thursday, they begin their deliberations among themselves.

"There are issues involved with DCS, there's no question about that," said state Sen. John Broden, D-South Bend and a member of the study committee. "Clearly Tramelle's death was a galvanizing force for what became a strong bipartisan effort, that we needed to take a good, hard look at everything regarding the Department of Child Services, especially starting with the intake process."

In response to media reports and concerns from law enforcement, schools and even emergency rooms, DCS has already made some changes to its centralized call center for abuse and neglect reports.

But some -- such as St. Joseph County Prosecutor Michael Dvorak, St. Joseph Probate Judge Peter Nemeth, and state Rep. Gail Riecken, D-Evansville -- advocate for a return to local centers where relationships among professionals can be tapped.

Here is the home page of the Department of Child Services Interim Study Committee. Two meetings are scheduled, for Nov. 8th and Nov. 27th.

The current contest is just as close and intense, but the candidates have campaigned in only 10 states since the political conventions. There are towns in Ohio that have received more attention than the entire West Coast.

The shrinking electoral battleground has altered the nature of American self-governance. There is evidence that the current system is depressing turnout, distorting policy, weakening accountability and effectively disenfranchising the vast majority of Americans.

“It’s a new way to run a country,” says Bill Bishop, co-author of “The Big Sort,” a 2008 book that examined the most important cause of the trend: the recent tendency of like-minded people to live near one another.

That demographic shift means the country is now dominated by solidly Democratic states on the coasts and solidly Republican ones in the interior and in much of the South. In a close election, all of those states are completely out of reach for one candidate or the other.

Ind. Law - Wedding of daughter of Indianapolis attorneys featured in NYT

The Weddings/Celebrations section of Sunday New York Times features each week, in addition to several pages of marriage announcements, a one-half to full-page feature called "Vows," focusing on the story of one couple. The couple this week was Sarah Hoover and Tom Sachs. The celebration took place at Oldfields-Lilly House and Gardens on October 20th.

Ms. Hoover is the daughter of Indianapolis attorney John David Hoover and former prosecutor Martha Hoover, who moved on to found Patachou and many other successful restaurants. The groom, Tom Sachs, "is a contemporary artist who lives and works in New York City," according to Wikipedia.

This week's oral arguments before the Court of Appeals (week of 11/5/12):

No oral arguments currently scheduled.

Next week's oral arguments before the Court of Appeals (week of 11/12/12):

Tuesday, November 13th

11:00 AM - David Bleeke v. State of Indiana, et al (02A05-1201-PL-25) - After the trial court granted summary judgment in favor of the State in this declaratory judgment action, Bleeke filed a notice of appeal. Among the questions presented in this appeal are: (1) whether designated Indiana Parole Board conditions of parole are void because they were not promulgated pursuant to IC 11-13-3-4(b); (2) whether designated Indiana Parole Board conditions of parole are void because they were imposed without the Indiana Parole Board first making an individualized determination that the conditions were reasonably related to Bleeke's reintegration into the community and that the conditions were not unduly restrictive of Bleeke's fundamental rights; (3) whether designated Indiana Parole Board conditions of parole are unconstitutionally vague or overbroad; (4) whether IC 11-13-3-4(g) and IC 35-42-4-11 are facially overbroad; (5) whether the State's "Sex Offender Management and Monitoring Program" is unconstitutional; and (6) whether the trial court erred in not dismissing Bleeke's action against parties other than the Parole Board. The Scheduled Panel Members are: Judges Friedlander, Brown and Sr. Judge Darden. [Where: Indiana Court of Appeals Courtroom (WEBCAST)]

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.